Lampshire & Lampshire
[2023] FedCFamC1F 556
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lampshire & Lampshire [2023] FedCFamC1F 556
File number: MLC 10325 of 2019 Judgment of: HARTNETT J Date of judgment: 7 July 2023 Catchwords: FAMILY LAW – PARENTING – Parental responsibility – Where the parties agreed to equal shared parental responsibility – Where the husband seeks change of residence and spend time arrangements – Family violence allegations – Where one child is disabled and has special needs – Where the two eldest children are now adults and do not have a close relationship with the husband – Where the two younger children are the subjects of the proceeding – Where the two younger children live predominantly with the wife – Where the youngest child is enmeshed with the wife and elder siblings – Where the husband has re‑partnered – Where the wife has a diagnosed mental health disorder which is rejected by her – Where there is risk to the children in the wife’s care that can be ameliorated – Where the parties are unable to communicate effectively as to the husband’s involvement with the children – Where the wife has failed to comply with Court orders – Children live in a six/eight fortnightly arrangement in favour of the husband on a fortnightly basis during term periods and one half of all school holidays – Parties to appoint a child psychologist for the youngest child – Parties to encourage continuance of sporting activities for the youngest child.
FAMILY LAW – PROPERTY – Division of property interests – Where both parties have contributed to the asset pool – Where the asset pool is agreed between the parties – Where the husband worked throughout the relationship – Where the wife has been occupied in home duties and the primary care of the children – Where the husband is employed – where the wife is unemployed and will likely not obtain employment in the future – Where the contributions are equal – Where the s 75(2) matters favour the wife – Where a division of 40% to the husband and 60% to the wife should be made.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAA, 75, 79, 149
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Division 11.1.13, rr 11.15, 13.04
Cases cited: Bevan & Bevan (2013) FLC 93-545
Best & Best (1993) FLC 92-418
Blinko & Blinko [2015] FamCAFC 146
Dickons & Dickons (2012) 50 Fam LR 244
Goode & Goode (2006) FLC 93-286
Clauson & Clauson (1995) FLC 92-595
M & M (1988) 166 CLR 69
Mallet v Mallet (1984) 156 CLR 605
Mulvany & Lane (2009) FLC 93-404
Pandelis (2018) Fam CAFC 66
R & C [1993] FamCA 62
Stanford & Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 273 Date of hearing: 20 - 24 February 2023 Date of last submissions: 28 March 2023 Place: Melbourne Counsel for the Applicant: Ms Tulloch Solicitor for the Applicant: Doherty & Colleagues Counsel for the Respondent: Mr Chislett Solicitor for the Respondent: Ressan Lawyers Counsel for the Independent Children's Lawyer: Mr Foo Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 10325 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LAMPSHIRE
Applicant
AND: MS LAMPSHIRE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
7 July 2023
THE COURT ORDERS, BY CONSENT, THAT:
Parenting
1.The parents have equal shared parental responsibility for the children, X born 2007 and Y born 2010 (collectively known as “the children”).
AND THE COURT ORDERS THAT:
2.All previous parenting orders be discharged.
3.The children live with the husband.
4.The children spend time with the wife as follows:
(a)each alternate weekend during school term from the conclusion of school Thursday to the commencement of school Wednesday;
(b)for half of all school term holidays by agreement and failing agreement from conclusion of school on the last day of term until 5.00pm on the middle Saturday of the holidays;
(c)for two non-consecutive weeks by agreement and failing agreement for the first full week prior to Christmas and the first full week of the New Year, commencing at 3.00pm on the Friday;
(d)for two hours by agreement on each of their birthdays and on the wife’s birthday if such birthdays fall on a school day and from 9.00am to 1.00pm if they fall on a non-school day;
(e)from 6.00pm on the eve of Mother’s Day to 9.00am the following Monday; and
(f)from 3.00pm Christmas Day until 3.00pm Boxing Day in 2023 and each alternate year thereafter and from 3.00pm on Christmas Eve until 3.00pm Christmas Day in 2024 and each alternate year thereafter.
5.If they would otherwise be in the wife’s care, the children spend time with the husband as follows:
(a)on each of their birthdays and the husband’s birthday, on a school day for 2 hours by agreement and on a non-school day from 1.00pm to 5.00pm;
(b)from 6.00pm on the eve of Father’s Day to 9.00am the following Monday; and
(c)from 3.00pm Christmas Day until 3.00pm Boxing Day in 2024, and in each alternate year thereafter and from 3.00pm on Christmas Eve until 3.00pm Christmas Day in 2023 and in each alternate year thereafter.
6.Changeovers that coincide with the conclusion or start of school to take place at the children’s school(s) and otherwise the parent with whom the children are about to live with or spend time collect the children from the other parent’s residence at the beginning of their time.
7.The parents to keep each other notified of their current address and telephone number.
8.Within 21 days of these Orders both parents do all such things necessary to engage a child psychologist for the child Y as agreed between the parties, and follow all reasonable directions of the said psychologist with respect to Y’s attendance.
9.Failing agreement of the appointment for the engagement of a child psychologist for Y as specified for in these Orders, the husband shall have the final nomination of a psychologist for Y.
10.Both parents be at liberty to provide to Y’s psychologist as provided for in these Orders the following documents:
(a)Dr B’s Family Assessment Report dated 17 January 2020;
(b)Dr C’s psychiatric reports of both parents dated 3 February 2023;
(c)Dr D’s Family Report dated 18 March 2022;
(d)Dr D’s Addendum Report dated 13 October 2022; and
(e)Dr D’s letter dated 20 February 2023.
11.The husband shall arrange a time for Y to meet with the Independent Children’s Lawyer for her to explain the final parenting arrangements to Y. Such time to occur within 1 month of the date of these orders (if possible).
12.Upon completion of the Independent Children’s Lawyer explaining the parenting arrangements to Y, the appointment of the Independent Children’s Lawyer shall be discharged.
13.Both parents do all such reasonable acts and things to ensure that Y continue her sport sessions and to bring Y to any necessary training events.
14.Both parents keep each other informed of:
(a)any significant injuries or illness that either child suffers whilst in their care, as soon as practicable, following such injury or illness;
(b)any instances where either child needs urgent medical attention during their time with either child, immediately if possible, or otherwise as soon as practicable thereafter;
(c)any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in cases of emergency (with the parent in whose care either child is in to inform the other parent immediately), with each parent permitted to visit the child in hospital irrespective as to with whom the child are staying at the time of such hospitalisation; and
(d)any general medical or health issues relating to either child, including but not limited to particulars of any medication prescribed to either child and name and contact details of the prescribing health practitioner and such medication must be provided to the other parent at changeover, if applicable.
15.Each of the parents are authorised to receive copies of all school reports, school photograph order forms and school related documentation normally sent to parents (at their own expense) and attend all parent teacher interviews, extracurricular activities including concerts, plays, sporting events and the like, normally attended by parents.
Property
THE COURT FURTHER ORDERS, BY CONSENT, THAT:
16.Pending the settlement of the sale of the real property situate at and known as E Street, Suburb F in the State of Victoria, being the land more particularly described in Certificate of Title Volume … Folio … (“the Suburb F property”), Orders 6 to 11 of the Orders made 3 August 2022 and Orders 2 to 5 of Orders made 15 September 2022 continue to have full force and effect.
17.Before 21 July 2023 the wife to provide copies of the following documents to the husband and to G Accountants:
(i)property purchase information and loan statements for H Street, Suburb J;
(ii)documents which show when the property at H Street, Suburb J first started to generate rental income;
(iii)loan statements (showing interest) for:
i.Westpac investment property loan #...89 from 1 July 2010 onwards;
ii.Westpac equity loan #...67 from 1 July 2007 onwards;
iii.Westpac investment property loan #...47 from 1 July 2011 onwards; and
iv.Westpac investment property loan #...05 from 1 July 2008 onwards
(iv)documents which show the rental income for:
i.K Street, Suburb L from 2009:
ii.N Street, Suburb M, Region P from 2009;
iii.Q Street, Suburb R from 1 July 2010; and
iv.H Street, Suburb J from the first date it was leased.
18.Before 11 August 2023 the husband and the wife forthwith each do all such acts and things and sign all such documents as may be necessary to complete and lodge all financial statements and tax returns for each of them personally and for any entities owned, operated or controlled by either of them or both of them jointly up to and including the financial year ending 30 June 2022 (“the outstanding tax returns”).
THE COURT FURTHER ORDERS THAT:
19.Upon settlement of the sale of the Suburb F property the net proceeds to be applied as follows:
(i)first, to pay all costs, commissions and expenses of the sale;
(ii)secondly, to discharge the mortgage to Westpac and any encumbrances affecting the Suburb F property, including rates owed to S Council (approximately $21,601) and the outstanding water bill from T Service (approximately $5,079);
(iii)thirdly, to pay the sum owed to Ms U for project management fees for the preparation of the Suburb F property for sale ($6,600);
(iv)fourthly, to pay to Westpac the balance owing on the Westpac Mastercard ending in #...56 (to a maximum of $13,234);
(v)fifthly, to pay to Westpac the balance owing on the Westpac Mastercard ending in #...58 (to a maximum of $3,274);
(vi)sixthly, to pay to the CBA the balance owing on the CBA Mastercard (to a maximum of $8,722);
(vii)seventhly, to pay all outstanding amounts of taxation, interest or penalties owed by either of them or both of them jointly to the Australian Taxation Office for the period up to and including the financial year ending 30 June 2022;
(viii)eighthly, to pay to G Accountants such sum as is owed to them for their accounting fees in preparing the parties’ tax returns and attending to their tax matters;
(ix)ninthly, to refund to the Husband such sums as may be paid by him at first instance in maintaining the Suburb F property pending the settlement of the sale up to a maximum of $3,500 and subject to the Husband providing copies to the wife’s solicitors of receipts for all sums paid by him ;
(x)tenthly, the balance then remaining to be divided as follows:
A.to the husband 40%;
B.to the wife 60%
THE COURT FURTHER ORDERS, BY CONSENT, THAT:
20.In the event that prior to the settlement of the sale of the Suburb F property the parties have not completed the outstanding tax returns prior to the settlement of the sale of the Suburb F property or are otherwise unable to ascertain precisely what sums are due and payable to the ATO, then prior to either of them receiving their shares of the balance remaining pursuant to Order 19(x) above, the sum of $450,000 shall be paid into an interest bearing account to be held on trust by the husband’s solicitors on behalf of both of the husband and the wife (“the tax fund”).
21.Within 7 days of being advised by their accountants, G Accountants, that any of the following liabilities are due and payable, the parties to each do all such acts and things as may be necessary to cause such liabilities be paid from the tax fund:
(i)outstanding taxation, interest or penalties for either of the husband or the wife personally and/or for any entity owned or controlled by them up to 30 June 2022; and
(ii)all accounting fees rendered by G Accountants for work done in relation to the outstanding tax returns.
22.In the event that all of the liabilities referred to in Orders 21(i) and (ii) above are paid in full and there is a credit balance remaining in the tax fund, the amount remaining shall be divided between the parties in the same percentage division as provided for by Order 19(x).
23.In the event that the funds in the tax fund are insufficient to meet all of the liabilities referred to in Orders 21(i) and (ii) above the parties to each pay, be liable for and indemnify each other against each of those outstanding liabilities in the same percentage division as provided for by Order 19(x).
24.Pending the settlement of the sale of the Suburb F property:
(i)the husband have sole use and occupation of the said property to the exclusion of the wife for the purpose of its maintenance and sale;
(ii)neither party encumber or further encumber the Suburb F property; and
(iii)the parties to each hold their interest in the Suburb F property upon trust for the other in accordance with the terms of these orders.
25.Within 28 days the parties each do all such acts and things and sign all such documents as may be required to wind up V Pty Ltd and the V Family Trust and for such purposes:
(i)the parties shall jointly appoint G Accountants to act on behalf of both of them in relation to the said winding up; and
(ii)the parties to each pay one half of the costs associated with the said winding up.
26.The husband be solely entitled to retain:
(a)Motor Vehicle 1;
(b)Motor Vehicle 2; and
(c)the items purchased by him to maintain the Suburb F property, being the garden maintenance equipment and trailer.
27.The wife be solely entitled to retain:
(i)Motor Vehicle 3;
(ii)the W Company and Z Company shares;
(iii)the recreational vehicle;
(iv)the 2 trailers; and
(v)the animals and related equipment.
Superannuation Splitting
28.Orders 29 to 35 of these Orders are binding on the Trustees of Superannuation Fund 1 (“the Fund”),
29.The base amount allocated to the wife out of the interest of the husband in the Fund is $437,690) (“the base amount”).
30.Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the interest of the husband in the Fund, the wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the husband.
31.Order 30 has effect from the operative time.
32.The operative time for the purposes of these Orders is four (4) business days after the date of service of these Orders upon the Trustee of the Fund.
33.Within fourteen (14) days of becoming entitled to receive a superannuation benefit from the Fund, the wife will give the Trustees of the Fund all such forms as necessary to enable it to determine the nature and quantum of the wife’s superannuation entitlement and give the Trustee of the Fund and any other related information it may reasonably require.
34.There be liberty to each party and the Trustee of the Fund to apply regarding the implementation of these Orders affecting the interests of the husband and the wife in the Fund.
35.Until such time as the superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to the wife:
(a)the husband will give to the wife written notice not less than 28 days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund.
(b)the husband will direct and authorise the Trustee of the Fund to communicate with the wife and/or any person authorised by her in writing:
1.to answer any reasonable inquires as may be made by her or on her behalf from time to time regarding her entitlement in the Fund; and
2.to give to the wife and/or her authorised representative a copy of any notice of any application or request by the husband which seeks a release of entitlements in the Fund in so far as that release may affect the wife’s entitlement in the fund pursuant to these Orders.
(c)the husband, his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these Orders.
(d)in the event that the superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to the wife each of the parties will each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
36.If either of the husband or the wife fail to do all such things and sign all such documents as required to comply with these orders, a Registrar of the Federal Circuit and Family Court of Australia at Melbourne is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute any document or instrument in the name of the husband or the wife and to do whatever other acts and things that may be necessary to give validity and operation to the document or instrument.
37.The husband be permitted to provide copies of any court documents filed by either the husband or the wife in these proceedings, expert reports, orders and/or judgments to any bank, other financial institution or organisation relevant to the assessment of his credit rating in the event that he seeks to make any hardship or any other type of application as may be necessary in order to seek to improve his credit rating.
38.Unless specified in these orders and save for the purpose of enforcing these or any further orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)money standing to the credit of either party in any bank or other account remains deemed to be in the possession of the person named on the bank’s record;
(c)monies standing to the credit of the parties in any joint bank accounts are to be split 50% to the wife and 50% to the husband;
(d)each party forego any claims they may have to any superannuation benefits belonging or earned by the other party;
(e)any insurance policies remain the sole property of the owner named in the policy;
(f)each party be solely liable for and indemnify the other against any liability encumbering any item of property and or entity to which that party is entitled pursuant to these orders; and
(g)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
39.Otherwise all extant applications be dismissed and the matter be removed from the list.
AND THE COURT NOTES THAT:
A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that my follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
B.The parties have liberty to apply to the Chambers of Justice Hartnett in respect of the filing of any Enforcement Applications they may bring.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lampshire & Lampshire has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
RELEVANT LITIGATION HISTORY
On 11 September 2019, the applicant husband (“the husband”) filed an Initiating Application for Final Orders in the then Federal Circuit Court of Australia, now Federal Circuit and Family Court of Australia (Division 2). He sought final parenting orders such that, the parties have equal shared parental responsibility for the children, Ms AA born 2002; Ms BB born 2004; X born 2007; and Y born 2010 (collectively “the children”), the children live equally with each party in a fortnightly cycle and for one half of all school holiday periods together with equal special occasion time; and that changeover occur with each party delivering the children to the other party at the conclusion of their time. The husband sought to be excused from particularising the final property orders sought by him until the respondent wife (“the wife”) provided full and frank disclosure to him and valuations were complete. He otherwise sought costs of and incidental to his Application on an indemnity basis.
On 26 September 2019, the wife filed a Response to Initiating Application for Final Orders. She sought final parenting orders being that, the wife have sole parental responsibility for the children; the children live with her; the children’s spend time with the husband be determined following the preparation of a Family Report; and for the husband to complete a men’s behaviour change program. The wife sought final property orders that, there be a property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The wife otherwise sought that she be excused from particularising the property orders sought by her until there had been full and frank disclosure by the husband of his financial position, discovery and valuation of the matrimonial assets. The wife sought the husband pay to her by way of lump sum and/or periodic payment, spousal maintenance.
On 1 October 2019, interim parenting orders were made by consent, for both parties and the children to attend upon Dr B for psychiatric assessment; the parties to attend a post separation parenting course; changeover to be effected by the maternal grandmother and the husband; the children to spend time with the husband each alternate weekend from Friday until Sunday in the paternal grandmother’s presence and home; and for the children to be permitted to telephone the husband and the husband be permitted to telephone the children each Tuesday and Thursday between 6.30pm and 7.30pm. Further interim property orders were made by consent, for both parties to make full and frank disclosure pursuant to r 13.04 of the then Family Court Rules 2004 (Cth), now Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”); the parties obtain a sworn valuation of the five properties which remained in dispute as to value by an appointed property valuer; the parties to attend a private mediation; and the husband to be paid $50,000 and the wife to be paid $90,000 by way of part property settlement to each. The funds withdrawn by each of the parties from their joint accounts (being the amounts of $20,000 by the husband, and $232,000 by the wife) were required to be repaid into the accounts from which they were initially withdrawn within seven days.
On 29 January 2020, orders were made by consent, that each party keep the other advised and informed of all significant dates and events for the children; each party to appoint Ms CC of G Accountants to complete all outstanding taxation returns; the wife advise DD Valuers of an inspection date suitable to her of the former matrimonial home at E Street, Suburb F (“the FMH”); and for the parties to sell their four investment properties and thereafter do all acts and things necessary to obtain an estimate of taxation liabilities arising from the sale of the properties from an accountant. Further, the Court made orders, that the children be independently represented with representation to be arranged by Victoria Legal Aid.
On 31 March 2020, orders were made by consent, relevantly, that all previous parenting orders were discharged; the children live with the wife; the children spend time and communicate with the husband each alternate weekend and on special occasions, save Ms AA’s and Ms BB’s time spent with the husband to be subject to their wishes; the husband to ensure he slept in the same bedroom as X during all overnight periods that X was in his care; the parties to provide to each other particulars of any treatment required or received by the children; the parties to attend upon Ms EE for the purposes of reportable family therapy; the parties to do all acts and things required to obtain mental health care plans for the children and to apply for a Medicare rebate for the family therapy; and the wife to be restrained from attending upon the same psychologists/counsellors for treatment as attended upon by any of the children.
On 30 July 2020, additional orders were made by consent, relevantly, that the children spend additional time with the husband for the September/October 2020 school holiday period; the FMH to be placed on the market for sale by no later than 1 June 2021; and the wife to nominate a preferred selling agent.
On 21 December 2020, orders were made by consent, relevantly, that the parenting orders of 31 March 2020 were to remain in full force and effect, save for a slight variation such that the children spend time with the husband each alternate weekend during school terms from the conclusion of school on Friday until the commencement of school on Monday; that upon a report being produced from X’s treating doctor Dr FF, to the effect that a monitor be placed in X’s bedroom, was adequate protection against sudden death due to a medical condition; and the earlier Order 7 of orders made 31 March 2020 “That until the adjourned hearing date, the husband shall ensure that he sleeps in the same bedroom as [X] during all overnight periods [X] is in his care” was discharged, with the husband to ensure such monitor was placed in [X’s] bedroom during all overnight periods [X] was in his care. Otherwise, the children were to spend time with the husband for half of the school holiday periods; and the alternate weekend time was suspended during all school holiday periods. Property orders were also made by consent, that, the property situated at N Street, Suburb M in Region P (“the Region P property”) be placed on the market for sale; the wife comply with orders of 29 January 2020 by providing Ms CC all documents and information in her power and possession by 15 February 2021 to enable Ms CC to complete the parties outstanding taxation returns; and provide an estimate of the taxation liabilities arising from the sale of the parties real properties. The property at H Street, Suburb J (“the Suburb J property”) was to be placed on the market for sale on or before 15 February 2021. Upon settlement of the sale of these two properties, both parties were to do all acts and things required to apply the proceeds of sale to pay out the bank loans secured against the properties with any surplus funds to be deposited into the parties’ joint account offsetting the loan secured against the FMH. It was noted that the properties situated at Q Street, Suburb R (“the Suburb R property”), and GG Street, Suburb HH (“the Suburb HH property”) had been sold.
In late 2021, a divorce order was made. The Court declared that the only children of the marriage who had not attained 18 years of age were the children Ms BB, X and Y.
On 14 October 2021, orders were made by consent, relevantly, for all previous parenting orders to be discharged; the parties to have equal shared parental responsibility for the children; and for the parties to attend upon Dr D for the preparation of a Family Report. Orders were also made that, until further order, the children, X and Y, during school terms, live with the wife and spend time with the husband on a fortnightly cycle, with X spending four nights and Y spending three nights in the husband’s care, together with the first week of each of the school holidays and on special occasions.
On 24 November 2021, the husband filed an Amended Application in a Proceeding seeking sole use and occupation of the FMH for the purposes of preparing it for sale (the wife opposed the making of this Order), and the wife’s compliance with the Court orders made on 30 July 2020, 21 December 2020 and 29 January 2020.
On 10 December 2021, orders were made by consent, relevantly, that the parties sell the Suburb J property and the Region P property (I note, as had already been ordered on 21 December 2020); the parties each receive $50,000 by way of a part property settlement from the parties joint account; the parties transfer ownership of Motor Vehicle 3 to the wife at her expense; and that on or before 11 February 2022, the wife complete all bookwork and submit same to the parties’ accountant Ms CC to enable her to complete all outstanding tax returns for the parties personally and for the family trust.
On 25 February 2022, the matter was listed for final hearing.
On 28 March 2022, Chief Justice Alstergren made orders the matter be transferred to the Federal Circuit and Family Court of Australia (Division 1) pursuant to s 149 of the Act.
On 3 August 2022, the Court made orders that the wife deliver all documents in her possession relevant to the completion of the parties’ outstanding tax returns to the husband’s solicitors by 15 August 2022; the husband provide the documents to Ms CC to complete the outstanding return; the husband have sole use and occupation of the FMH for the purpose of preparing it for sale; the wife vacate the FMH on or before 4.00pm on 24 August 2022 and be at liberty to take all chattels and furniture that she wished save for the husband’s personal items; the husband do all acts and things to present the property for sale and in that regard Order 6 of the Orders provided:
6.That upon the husband obtaining sole use and occupation of the [Suburb F] property he shall forthwith do all acts and things necessary to prepare and list the [Suburb F] property for sale (“the sale”) and for the purposes of this Order;
a.The husband be at liberty to discard, dispose or retain as he sees fit any chattels or furniture left by the wife in the [Suburb F] property;
b.The husband select and appoint a suitable real estate agent (“the agent”) to sell the [Suburb F] property;
c.The husband follow all reasonable recommendations of the agent regarding the presentation of the [Suburb F] property for sale;
d.Any costs associated with presenting the [Suburb F] property for sale including but not limited to the disposal of items left in the property by the wife, repairs to the property, garden maintenance and/or staging of the property, shall be paid from the proceeds in the parties’ joint Westpac Choice Account and each party will do all things and sign all documents required to release the necessary funds, such amounts estimated to total $56 000 for the works to be undertaken as follows:
i.Painting costs of $15 000;
ii.Gardening including tree removal, fertiliser, weed removal and spraying, garden repairs, regressing, trimming and maintenance costs of $5 000;
iii.Replacing carpet costs of $15 000;
iv.Sanding, repairs and relacquering of floors costs of $10 000;
v.Fixing internal windows/doors and walls costs of $1 000;
vi.Repairs to the pool and external features costs of $2 000;
vii.Rubbish removal costs of $2 000;
viii.Property styling costs of $6 000
The wife was to deliver to her solicitors office her personal bank statements, credit card statements and last three statements for each superannuation fund of which she was a member. Additionally, upon vacating the FMH the wife was to be paid a further $50,000 from the parties’ joint account. The characterisation of such payment to be determined at trial.
On 1 September 2022, the Court made orders that the husband provide to Dr D the photographs and video footage of the FMH recorded by, the husband’s cousin, Ms U in mid-2022; and that Dr D prepare an Addendum Report regarding the issue of any physical, psychological and/or emotional risk to the children arising from the living conditions at the FMH. The wife advised the Court that she would vacate the FMH by 4.00pm on 6 September 2022.
On 6 September 2022, the husband sought orders relevantly, that pursuant to Division 11.1.3 of the Rules an Enforcement Warrant be issued on the application of the husband; pursuant to r 11.15 of the Rules the Sherriff forthwith remove the wife from the FMH; and the wife pay the husband’s costs of the Enforcement Application (which he was required to issue due to the wife’s non-compliance with orders of the Court made 3 August 2022) on an indemnity basis.
On 7 September 2022, the Court made an order for a warrant of possession to issue allowing the officers at the Australian Federal Police to enter the FMH and cause the wife and any other persons present to vacate the said premises and provide vacant possession to the husband. Further, that the children, X and Y, live with the husband until further order.
On 15 September 2022, the Court made orders, relevantly that, on 24 September 2022 the orders dated 7 September 2022 be discharged with the children’s previous live with and spend time arrangements to be resumed with the wife and husband respectively; from 4.00pm that day the husband have sole use and occupation of the FMH; the wife to be restrained from coming within a 20 metre radius of the FMH; Order 6(d) of the Orders made 3 August 2022 be varied to read such that the estimated amount for the total of the works be $156,000; and that the husband provide copies of all documents and invoices relating to the monies spent, in terms of the preparation of the FMH for sale, to the wife.
On 30 September 2022, the husband filed an Amended Initiating Application for Final Orders. He sought parenting orders, relevantly, that the parties share equal parental responsibility for the children; the children live with him; the children spend time with the wife on alternate weekends from Friday to Monday; half school holidays and special occasion times; sole responsibility for administering X’s payments under the National Disability Insurance Scheme (“NDIS”); and the wife engage with a psychiatrist. He further sought property orders, relevantly that, pending sale of the FMH the orders made 3 August 2022 and 15 September 2022 continue to have full force and effect; the wife return specified items to the FMH to be sold with the FMH; the parties lodge all financial statements and tax returns up to the financial year ending 30 June 2022; the husband provide a schedule of amounts spent by him in preparation of the FMH for sale; the sale proceeds of the FMH be applied to pay all costs, commissions and expenses of the sale; upon lodgement of all outstanding tax documents with the Australian Taxation Office the parties make payments from their joint accounts to payment of accounting fees and penalties until 30 June 2022; the balance divided equally; the husband have sole use and occupation of the property to the exclusion of the wife for preparation and sale; neither party encumber the FMH; the wife deliver to the husband his personal items and chattels located at the FMH; the husband solely be entitled to retain his motor vehicles, items and chattels; the wife be solely entitled to retain her motor vehicle, Westpac shares and other chattels; and orders seeking a superannuation split.
On 17 October 2022, the wife filed an Amended Response to Final Orders. She sought parenting orders, relevantly, that the parties share equal shared parental responsibility for the children; the children live with her; X spend time with the husband each alternate weekend from Friday to Tuesday; Y spend time with the husband each alternate weekend from Friday to Monday; half school term holidays, two weekly periods during long summer holidays and special occasion time; neither parent arrange excursions or camps for either child whilst in their care without informing the other; suspension of the husband’s time with the children on Mother’s Day and children’s birthdays; and she be solely responsible for the administration of X’s NDIS funding and inform the husband of any services or providers received. She further sought property orders, relevantly that, the FMH be sold pursuant to Order 11 of Orders made 3 August 2022, save the parties agree to the reserve price; the husband inform her of the terms of the proposed sale and keep her informed of the sale progress; provision of documents of the sale and repairs to be provided to her; funds removed from the joint Westpac accounts by the husband to be characterised as a part-property settlement to the husband; funds removed from the joint Westpac account by the wife to be characterised as spousal maintenance on behalf of the wife; superannuation orders; spousal maintenance to be paid either by lump sum or periodically; each party solely indemnify the other against any liability encumbering any item of property and or entity to which the party is entitled; and any joint tenancy in any real or personal estate be expressly severed.
On 24 October 2022, the Court made orders, relevantly, that all previous interim parenting orders remain in full force and effect unless varied; the children remain living with the wife; the child X spend time and communicate with the husband each alternate week from the conclusion of school on Friday until the commencement of school the following Thursday; the child Y spend time and communicate with the husband each alternate week from the conclusion of school on Friday until the commencement of school the following Monday and be at liberty to decide if she wished to stay in the husband’s care until Thursday morning; both children spend time with the husband for one half of the 2022/2023 long summer school holiday period on a week about basis; the parties to attend upon Dr C for psychiatric assessment with both parties to be responsible for the costs; the wife to engage professional home cleaning services on a regular basis and at a minimum on a monthly basis; both parties engage a child psychologist for the child Y; the wife deliver to the husband’s home the husband’s chattels as located in the FMH; after the wife’s receipt of $50,000 pursuant to Orders made 3 August 2022 the balance of the account to be divided equally between the parties by way of part property settlement to each of them; upon release of the deposit monies from the sale of the FMH, the husband to be paid the sum of $95,000, and the wife to be paid the sum of $115,000, by way of a further part property settlement payment to each. The Court noted the husband maintained his position there should be a change of residence in respect of X and Y such that they live with him as a final order. The wife maintained her position that there should not be an increase in X’s time spent with the husband, nor any change to Y’s then arrangements by way of increased time spent with the husband as a final order.
Proposals
Parenting
At trial, the wife sought the children live with her, the husband to spend alternate weekends for four nights with X and three nights with Y, and she have sole responsibility for the administration of X’s NDIS funding.
At trial, the husband sought the children live with him, the children spend time with the wife each alternate weekend from after school Friday until the commencement of school Monday, half school holidays, two non-consecutive weeks over the long summer holidays, special occasion times, changeover to take place at school or the resident with whom the child is to live or spend time. The husband was of concern the wife was not attending upon a treating psychiatrist and sought the wife’s psychiatric condition to be managed.
The ICL supported the husband’s application for a change of residence of the children from the wife to the husband and in essence, his application as to the time the children should spend with the wife. The ICL however, did not support the husband’s application for an order that the wife be required to engage with a treating psychiatrist. The husband withdrew thereafter from the seeking of such order on the basis that there was little prospect the wife would meaningfully engage with psychiatric treatment, thus little utility compelling her to do so by way of a Court order.[1] I note the evidence of Dr C in respect of the wife receiving treatment in respect of her mental health disorder lent some support to that view.
[1] Husband’s written closing submissions dated 28 March 2023, paragraph 4.
The ICL sought additional parenting orders relevantly, that, changeover to occur at the children’s school or parent’s residence; both parties to engage a child psychologist for Y; any failure to appoint a child psychologist by agreement shall result in the husband making the decision as to whom to appoint; the parties to arrange for Y to meet with the ICL to explain the final parenting arrangements; and orders for both parents to ensure Y continue her sport sessions and to bring Y to any necessary training events.[2]
[2] ICL Minute of Proposed Final Parenting Orders dated 23 February 2023.
On 22 February 2023, at trial, the Court made orders that the husband be permitted to collect from the wife’s home all of his personal photographs and photo albums, the chess set, and the wife to produce the husband’s camera for handover to him on 23 February 2023. These orders were necessitated by the wife’s failure to comply with the orders of 24 October 2022.
At trial, the parenting dispute between the parties had narrowed, as the parties elder two daughters, Ms AA and Ms BB had become adults, thus no longer the subject of parenting orders. The parties’ younger two children, X and Y, remained the subject of the parenting proceedings.
The issue of parental responsibility was ultimately not in dispute. The parties agreed upon an order for equal shared parental responsibility of the children.
Property
After the conclusion of the trial, the property dispute between the parties had also narrowed. The parties had consented to property orders, relevantly, that the FMH be sold; the wife provide relevant documents to the parties’ accountants; the parties lodge all tax returns personally and for any entities owned; operated or controlled by either of them jointly up to and including the financial year ending 30 June 2022; the sale proceeds of the FMH be applied to pay all outstanding liabilities; the husband and the wife be entitled to certain chattels; and that there be an equal split of their superannuation entitlements. What remained in dispute was the alteration of the parties property interests in the balance of the asset pool’s between the parties.
The parties had formulated an agreed asset pool.
The husband sought an equal distribution of the parties’ asset pool. The wife sought an adjustment in her favour which would give effect to her receiving 70 per cent of the parties’ asset pool and the husband receiving the remaining 30 per cent.[3]
[3] Wife’s written closing submissions dated 8 March 2023, paragraph 26.
It was agreed between the parties there was a total superannuation entitlement of $1,076,620 and that a superannuation splitting order of $437,690 to the wife representing an equalisation of the parties’ entitlements, was appropriate and a just and equitable outcome.[4]
[4] Wife’s written closing submissions dated 8 March 2023, paragraph 15.
The parties had also conducted an in specie division of chattels. Some of the chattels had been valued and some had not. The parties agreed however that the division was roughly equal, and that such adjustment was just and equitable in all the circumstances.
It was agreed that only the net proceeds of the sale of the FMH should be used to calculate an overall division.[5]
[5] Wife’s written closing submissions dated 8 March 2023, paragraph 17.
The FMH was sold for $2.5 million and after paying out the non-disputed liabilities, it was agreed there would be approximately $1,153,912 to be divided between the parties.[6]
[6] Wife’s written closing submissions dated 8 March 2023, paragraph 18.
The wife sought an adjustment of 70/30 in her favour being approximately $807,738. This would leave a payment of approximately $346,174 to the husband, resulting in the wife receiving approximately $461,564 more than the husband.[7]
[7] Husband’s written closing submissions dated 28 March 2023, paragraph 51.
The husband sought equality, namely a payment of $576,956 to each of the parties. The husband submitted in particular that there should be no adjustment for the s 75(2) of the Act matters. The husband submitted the amount sought by the wife was excessive and the position of 70/30 outside the range of what would be a just and equitable alteration of their property interests between the parties.[8]
[8] Husband’s written closing submissions dated 28 March 2023, paragraph 55.
MATERIAL RELIED UPON
The husband relied upon:
(1)Amended Application for Final Orders filed 30 September 2022;
(2)Application in a Proceeding filed 19 October 2022;
(3)written closing submissions filed 28 March 2023;
(4)his Financial Statement filed 30 September 2022;
(5)his trial affidavits filed 30 September 2022, 20 October 2022 and 16 February 2023;
(6)his Outline of Case filed 20 February 2023;
(7)affidavit of Mr JJ, his accountant, filed 20 October 2022;
(8)affidavit of Ms KK, his partner, filed 16 February 2023;
(9)affidavit of Ms U, his cousin, filed 26 September 2022; and
(10)Psychiatric Report prepared by Dr C dated 3 February 2023.
The wife relied upon:
(1)Amended Response to Initiating Application filed 17 October 2022;
(2)written closing submissions submitted 8 March 2023;
(3)her Financial Statement filed 17 October 2022;
(4)her trial affidavits filed 17 October 2022 and 17 February 2023; and
(5)her Outline of Case filed 17 February 2023.
The Independent Children’s Lawyer relied upon the section 67Z Response from the Department of Health and Human Services (“DHHS”) (now Department of Families, Fairness and Housing (“DFFH”)) dated 11 March 2020.
Both parties and the Independent Children’s Lawyer relied upon the Family Report of Dr D dated 18 March 2022; Addendum Report of Dr D dated 13 October 2022; and Assessment Report by Dr B dated 17 January 2020.
BACKGROUND
Parenting
The husband was born in 1966, and was aged 56 years at trial. He is in good health and is employed as a senior manager at LL Company. He resides with his partner, Ms KK, and her two adult children at a rental property in Suburb MM.
The wife was born in 1972, and was aged 50 years at trial. The wife is in poor health, suffering from an injury. The wife also has some mental health issues as discussed hereafter. She is currently unable to undertake employment due to her injury and is engaged in home duties. She has relocated to a rental property in Town NN, where she resides with the children.
The parties cohabitated in 1997 and were married in 2000.
In 2002, Ms AA was born.
In 2004, Ms BB was born.
In or around 2005, the wife sustained an injury. The injuries consist of nerve damage and pain in the affected area, this affects her ability to walk. The wife has since had multiple surgeries to stabilise the pain.
In 2007, X was born.
In 2010, Y was born.
In late 2017, the wife had an implant to assist with pain management for her injury. The benefits were to take effect after 18 months.
In mid-2019, as alleged by the wife, the husband engaged in acts of family violence by tripping X who then fell and hit his head, elbow and arm on the floorboards. The wife alleged the husband thereafter yelled at X, and blamed the wife for failing to “sort things out”.[9]
[9] Wife’s trial affidavit filed 17 February 2023, paragraph 70.
In mid-2019, as alleged by he wife, the husband engaged in further acts of family violence by shoving Ms BB’s head into the dishwasher cavity, and yelling at Ms BB.
Separation of the parties followed. There is a dispute between the parties as to when separation occurred. The husband stated that the parties separated in May 2019 and they were thereafter residing separately under the same roof. The wife stated separation occurred in July 2019, in the context of her obtaining an interim Intervention Order (“IVO”) which named the wife and children as protected persons as against the husband due to alleged family violence. Such violence was denied by the husband. It was the husband’s evidence the wife applied for an IVO against him, on an ex-parte basis, out of spite and in response to his desire to separate from her on a permanent basis.
Post-separation, the children have resided in the wife’s care. The husband did not spend time with the children for approximately three months post-separation due to the IVO conditions and the wife’s refusal to agree to the children spending time with the husband. In this time the husband became concerned about the children’s health, wellbeing and risk of neglect in the wife’s care. This led to the initiation by him of the family law proceeding.[10]
[10] Family Report of Dr D dated 18 March 2022, paragraph 12.
Regardless of the above, in July 2019, the husband was served by Suburb F Police with the interim IVO, and was required to leave the FMH.
On 12 September 2019, the husband filed a Notice of Child Abuse, Family Violence or Risk of Family Violence. He claimed the two elder children experienced significant mental health issues; specifically, that the child Ms AA suffered from severe depression including episodes of self-harm, and had been admitted into the PP Hospital Psychiatric Ward on two occasions; and that the child Ms BB also experienced depression and anxiety with refusal to attend school. He claimed the child X experienced a medical condition, and had a significant learning disability and behavioural issues, specifically difficulty in regulating his emotional behaviour and becoming violent when frustrated; and that the wife suffered from a “depressive related psychiatric illness which manifests itself in [disordered behaviour]” which had resulted in the FMH becoming unhygienic and uninhabitable.[11] The husband expressed concern for the mental and physical health of the children and made a notification to the then, DHHS, now DFFH who closed their investigation after the wife engaged with external services and the children Y and X appeared to be attending school.
[11] Husband’s Notice of Child Abuse, Family Violence or Risk of Family Violence filed 11 September 2019, p.4.
In fact, there had been three previous notifications made to the DHHS (now DFFH) between November 2018 and September 2019, which were all closed at the intake phase. Child Protection determined there was sufficient external service involvement with the family to assist in managing Ms AA’s mental health, and issues with Ms BB’s school refusal, together with asserted behavioural and aggression issues displayed by X.
On 31 January 2020, the wife filed a Notice of Child Abuse, Family Violence or Risk of Family Violence. The wife alleged the husband had been abusive to the children, including verbally abusive to Ms AA. The wife stated the husband could not understand Ms AA’s mental health issues and would call her names, such as “fucking lazy cow”, which contributed to Ms AA’s mental health difficulties.[12] Ms AA reported to the wife that the husband changed his mood very quickly and on some occasions would hit her unexpectedly. The wife alleged the husband had also been physical with X, including smacking him on several occasions.
[12] Wife’s Notice of Child Abuse, Family Violence or Risk of Family Violence filed 31 January 2020, p.6.
In March 2020, the DFFH prepared a section 67Z Response in response to the wife’s Notice of Child Abuse, Family Violence or Risk of Family Violence. The DFFH noted that the allegations of physical abuse to the children, as inflicted by the husband, were historical in nature and appeared to be in relation to inappropriate discipline. The Sexual Offences and Child Abuse Investigation Team (“SOCIT”) was made aware of the new reported concerns and advised of no further action. Child Protection contacted the children’s school, who were unable to identify any significant protective concerns for the children in either parent’s care. Child Protection made the decision to close the case. It was assessed there was insufficient information to suggest an impact of harm on the children. DFFH noted the children were at an age and stage of development where they had the ability to express their concerns and views. It appeared to the DFFH that a shared parenting response would assist in providing support and stability for the children.
The wife’s IVO application was adjourned by the Suburb QQ Magistrates’ Court on multiple occasions, and in each instance the interim IVO was extended by the Court. Whilst the husband was determined to challenge the family violence allegations, he decided to end the proceedings by consenting without admission to a final IVO for 12 months due to, as he claimed, the delays in securing a hearing date in the Magistrates’ Court. In mid-2021, the husband consented without admission to a final IVO of 12 months duration. During this time there was no breach of the IVO nor any family violence that occurred.
Property
The parties owned four investment properties, in addition to the FMH. The four investment properties included the Suburb R property; the Suburb HH property; the Suburb J property; and the Region P property.
In mid-2020, the Suburb R property was sold, with a sale price of under $400,000. Settlement occurred in mid-2020.
In mid-2020, the Suburb HH property was sold with a sale price of over $700,000. Settlement occurred in late 2020.
The net proceeds of the Suburb R property and the Suburb HH property were applied in part towards the partial discharge of the Westpac Investment Loan and otherwise the remainder of the net proceeds of sale were deposited into the joint Westpac account number of the parties ending in #...52. The wife deposed that the Australian Taxation Office has withheld $93,750 of net proceeds of sale from the Suburb HH property, due to the husband not submitting a Foreign Resident Capital Gains Withholding Certificate in the required time. The parties agreed that such funds as are withheld shall go toward any Capital Gains Tax liabilities of the parties.[13]
[13] Wife’s trial affidavit filed 17 February 2023, paragraphs 51-52.
In early 2022, the Suburb J property was sold for over $950,000. Settlement occurred in mid‑2022.
In mid-2022, the Region P property was sold for over $550,000. Settlement occurred in mid‑2022.
The net sale proceeds of both the Suburb J property and the Region P property were deposited into the Westpac joint account of the parties ending in #...52.
In mid-2022, the husband attended upon the FMH with Ms U. The husband waited for Ms U down the road and out of sight from the FMH. Ms U was present to inspect the FMH and provide her professional opinion as to the scope of work required to be completed to prepare the property for sale.[14] At that time, it had been approximately three years since the husband had resided there. Pursuant to earlier Court orders, the wife was to vacate the FMH by this date. The wife had not done so. Ms U knocked on the door of the home and received no response. Ms U proceeded to record a video (on her phone) of the state of the property.[15] The wife then arrived home and had a short conversation with Ms U. Ms U told the wife she was at the property to “do a walk-through” and get an idea of the work required to prepare the property for sale. The wife told Ms U she had not found a property to relocate to, and appeared confused at the prospect of preparing the property for sale.[16] Ms U did not believe the property to be in a habitable state and described being “worried for the health of the children, especially due to the mould”.[17]
[14] Affidavit of Ms U filed 26 September 2022, paragraph 4.
[15] Affidavit of Ms U filed 26 September 2022, paragraphs 6-8.
[16] Affidavit of Ms U filed 26 September 2022, paragraph 13.
[17] Affidavit of Ms U filed 26 September 2022, paragraph 15.
Ms U subsequently prepared a letter to the husband assessing the work required to prepare the property for sale. In her view it was unsafe and unsanitary for tradespeople to attend upon the property in its then state. It required professional cleaners to attend and clean the premises before the trades could commence to work on the property.[18]
[18] Affidavit of Ms U filed 26 September 2022, paragraph 17.
The husband was showed the videos taken by Ms U in mid-2022 of the FMH. Those videos and photographs depicted large volumes of rubbish; black mould on the inside of the windows and walls; animal excrement on the lawns and no fenced area for the animals. The wife also had a number of animals on the property and inside the house.
Two days later, the husband called Suburb F Police Station requesting a welfare check on the children. The husband was informed the Police would not conduct a welfare check unless they were satisfied the children were in imminent danger of abuse.
On 15 September 2022, the wife vacated the FMH at 5.30pm despite further Court orders requiring her to vacate the property by 4.00pm on that date. The wife relocated to a rental property in Town NN. The husband took up occupation of the property to prepare the property for sale, with the assistance of Ms U. The husband’s evidence as to the state of the FMH when he entered, was there was a smell; the floors were covered in faeces and urine; the walls, windows, ceilings and cupboards, all had black mould; the outdoor areas were in poor condition; many doors inside the house were broken; one vanity basin was smashed; the walls had a number of holes; the garden was overgrown; rubbish was strewn on the property; and the lawns were chopped and in a bad state. The wife had also left a few of the husband’s clothing items, with such items being covered in mould and rodent excrement.
In late 2022, the FMH was put on the market for sale after the completion of extensive remediation work.
In early 2023, the FMH was sold for $2.5 million. At trial, settlement was scheduled to take place in mid-2023.
PARENTING
Evidence
Statements of fact in these reasons are findings on fact on the balance of probabilities, unless the context indicates otherwise.[19] I found both the husband and the wife to be credible witnesses who did their best to recall events accurately.
[19] Evidence Act 1995 (Cth) s 140.
Dr B, Psychiatrist
The parties and children attended upon Dr B for a psychiatric evaluation and family assessment in December 2019. Dr B’s Psychiatric Report is in evidence before the Court. There was no challenge to Dr B’s expert evidence which is accepted by the Court and referable to the situation of the family in December 2019.
Both parents reported to Dr B a significant deterioration in their relationship, particularly after Ms AA was born, and following the wife’s post-natal depression after Ms BB was born. Factors in their remaining together included the husband’s determination to fix things, the wife’s belief that it was more important to remain together despite the husband’s (as alleged by her) increasingly aggressive and controlling behaviour, and their respective experiences of the death of the wife’s father and the separation of the husband’s parents. The children, with the exception of Y, at that time, had all had significant developmental and/or mental health problems. The children’s difficulties placed significant additional demands on their parents’ relationship.
The husband
The husband reported to Dr B that he had not had any psychiatric or mental health problems in the preceding eight to ten years. He had, however, in May 2019, given up hope of his marriage surviving. He felt he could not continue in that environment. He felt he could no longer function. He had no choice but to leave “for his own and the children’s sake”.[20]
[20] Family Report of Dr B dated 17 January 2020, p.19.
At the time of the assessment, the husband was seeking to spend alternate weekend time with the children and have telephone communication with them on each Tuesday and Thursday. He thought such arrangements would be more realistic at that time (he had earlier sought equal time spent arrangements) in the context of the wife’s lack of encouragement for the children to communicate with or spend time with him.
During the assessment, the three girls did not show any response to the husband’s arrival, and refused to say anything. The husband told the children he was sorry that he could not work things out, and make their home okay for visitors, which did not draw any response from the girls. The girls opted to return to the wife, scarcely looking back or saying goodbye to the husband. X spent a little more time with the husband, and was more receptive to him.
Dr B assessed the husband’s self-description and pride in the meticulous presentation of the FMH, and his consequent inability to cope with the wife’s untidiness and disorganisation as suggestive of being more obsessional and controlling than the husband liked to admit. Such traits he opined, may have accounted, for his difficulty in handling Ms AA.
Dr B noted the husband presented as a fit-looking man, a man who liked to be organised and fix things. When the husband accepted he could not fix the situation at home, it was Dr B’s view that he may have developed an Adjustment Disorder with mixed emotions. At interview, however, it was Dr B’s opinion that the husband showed no evidence of any acute psychiatric disorder that would adversely affect his parenting capacity.
The wife
The wife described feeling extremely put down by the husband who she claimed blamed her for everything. She described becoming upset at the way the husband had treated her over the years, making her feel totally worthless because she could not do things in the way he wanted. The wife stated she felt very ashamed; assumed it was her fault; and that she needed to fix things. She believed the husband had taken photographs of the house around the time of separation to make her look bad.
The wife denied any previous psychiatric or mental health problems other than post-natal depression after Ms BB was born, in respect of the wife she was admitted to hospital for psychiatric care. She claimed to otherwise not have suffered from depression or anxiety.
As to her physical health, the wife told Dr B that she had been diagnosed with an injury, and had undergone a number of operations, because of her severe pain. The wife’s injury recurred shortly after the pregnancy with X. There were no problems with X immediately after he was born, however he developed a medical condition at the age of about seven weeks. As a result, the wife’s then proposed surgery had to be delayed for about two years, with her finally having a surgery around late 2009. Two further operations to implant devices followed. The wife stated that in relation to these problems, the only difficulty she experienced was around the husband, who was not supportive and questioned the severity of her injury problems.
At the time of the assessment, the wife was taking a medication daily and occasionally other medications for stress related migraines. The wife denied that she had a mental health disorder, stating she was simply unable to keep up with the mess the children made around the house because of her pain, and because of the demands of caring for the children.
Dr B noted the wife attributed her problems to her pain and lack of support from her controlling husband. In his view, the wife’s lateness for both interviews with him suggested some difficulty organising herself. The children and her presentation at interview, suggested some underlying anxiety and a tendency to minimise or deny any psychological symptoms in Dr B’s opinion.
Dr B determined that the photographs of the FMH, attached to the 2019 affidavit of the husband, were consistent with a mental health disorder or severe depression, despite the wife’s denial of both.
Y
At the time of her interview with Dr B, Y was nine years of age in Grade 3. Y was spending two nights on alternate weekends with the husband. Y was described by both parents in positive terms, as having few problems.
At interview, Y told Dr B that the husband “has been really nice since her parents separated, as she is not yelled at anymore”.[21] Y told Dr B that two nights with the husband was “a bit hard” and that she would prefer to go for only one night.[22] Y felt compelled to go to the husband’s house and expressed she would prefer to spend the rest of the time with the wife, as the wife did not yell or hurt her or her sisters. Y stated she had trouble going to sleep, but the husband insisted on turning the lights off.[23]
[21] Family Report of Dr B dated 17 January 2020, p.24.
[22] Family Report of Dr B dated 17 January 2020, p.24.
[23] Family Report of Dr B dated 17 January 2020, p.24.
Dr B expressed concern that both Ms AA and Ms BB had aligned themselves strongly with the wife against the husband, and were likely to encourage Y to do likewise. Dr B observed that when all three girls refusal to engage in conversation with the husband during the assessment, that Ms BB praised Y for following her older sisters’ lead in this regard.
X
At the time of his interview with Dr B, X was 12 years of age.
X presented to Dr B with mild to moderate intellectual disability, and significant speech and language difficulties.
Dr B assessed X to have significant developmental problems. X had suffered from a poorly controlled, idiopathic medical condition for much of his life. Around the time of interview, X had begun to exhibit increasingly oppositional and aggressive behaviour. At times, X had made comments such as “me die” when angry and holding a knife, although he had not tried to harm or kill himself.[24]
[24] Family Report of Dr B dated 17 January 2020, p.28.
X was assessed by Dr B to respond very warmly to the husband and to have an affectionate relationship with him. He did not seem troubled by his sisters’ overt hostility to the husband. During his interview with Dr B, X drew a picture of his family. Dr B assessed the drawing, with X having a strong identification with the husband but with the ominous dark clouds and rain blocking the sun in the drawing, suggesting X was very aware of the tensions in the family.
It was Dr B’s view that it was important for both parents to not allow the older girls’ hostility to the husband to contaminate X’s positive relationship with the husband.
Recommendations
Dr B recommended that the parents continue to share parental responsibility for the children in particular as the children had mental health needs that would require ongoing input from mental health professionals.
Dr B recommended the positive relationship X had with the husband should be strongly encouraged and that he should spend significant and substantial time with the husband.
Dr B assessed Y to have an ambivalent relationship with the husband, and to be anxiously attached to the wife. Dr B expressed concern over the extent to which Ms AA and Ms BB may have influenced Y with their negative views of the husband. Dr B recommended the Court give consideration to Y to have the same time arrangements as X. Dr B also expressed concern that Y continued to sleep with the wife. Dr B recommended Y attend upon a child psychologist to help her deal with her feelings about her parents’ separation, and to resist pressure from her older sisters to conform to their views about the husband.
At the time of the assessment the wife was seeing the same psychologist as Ms BB. Dr B recommended it would be preferable if the wife saw a psychologist in her own right to help her adjust to her new circumstances, and to address any problems that may arise by reference to her chronic pain, her disordered behaviour and any underlying depression.
Dr C, Psychiatrist
Dr C was cross-examined by each of counsel of the husband and the wife. Dr C’s expert psychiatric evidence is accepted by the Court.
Dr C conducted a psychiatric assessment of the husband and wife on 3 February 2023 pursuant to Court orders made 24 October 2022. This evidence, being more contemporaneous to the trial was of great assistance to the Court.
The husband
On 31 January 2023, the husband attended upon Dr C. The husband conveyed to Dr C that the wife was dependent on prescription medication, had mental health difficulties, and a mental health disorder. The husband stated he had tried for many years to keep the marriage going and the family together, however the wife’s resistance to acknowledging her mental health difficulties had a serious impact on him, and on the children. This impact caused an eventual decline in his mental health and in that context, he decided to end the marriage. Having conveyed this to the wife he claimed she became angry and upset. It was the husband’s view that his decision to leave also disappointed Ms AA and Ms BB.
The husband conveyed that the children, particularly the girls, were emotionally enmeshed with the wife and protective of her. From his perspective he continued to be on the outer, though noted some improvement in his relationship with Ms AA but not Ms BB.
The husband stated to Dr C that having re-partnered, his mood had settled, and he was hopeful of maintaining a relationship with Y and X, and increasing contact with Ms AA and Ms BB. The husband regretted aspects of his behaviour around the time of separation, but did not believe those behaviours warranted an IVO being obtained by the wife against him. The husband expressed concern about the home and property in which the children had been residing, noting it was in a worse state than it was prior to his departure in 2019. The husband continued to hold concerns about the wife’s capacity, not only to run the house but to care for the children.
The husband reported to Dr C that whilst he had no family history of psychiatric illness, in the context of the proceeding, he attended upon a psychologist and was provided with a mental health plan which he found very helpful.
Dr C diagnosed the husband with an adjustment disorder with depressed and anxious mood in remission. Otherwise, Dr C found the husband did not exhibit symptoms of any psychiatric condition or personality disorder, and that from a psychiatric perspective he did not represent a risk to the children.
The wife
On 1 February 2023, the wife attended upon Dr C.
Dr C assessed the wife not to be lonely or isolated, and well supported by friends and family. Dr C found the wife to be a thoughtful and highly child-focused woman. The wife described feeling content, happy and secure moving into rental accommodation and looking forward to her future. The wife described her life at home with the children as enjoyable, and claimed that she had no stress.
The wife described to Dr C her various operations and procedures undergone in respect of her injury and pain. The wife described her daily pain levels in early 2023 as being a 3 out of 10, down from earlier pain levels of 8 or 9 out of 10. The wife was achieving this significant reduction in pain level however through the taking of a medication (Dr C noted this is generally not recommended for long term pain). Prior to seeing Dr C, the wife had undergone infusions which she claimed helped to decrease her medication dependency. Dr C nevertheless considered her daily dosage of the medication to be a large dose as was her daily dosage of another medication. Such dosages remained of concern to Dr C, because they were “highly addictive and sedating substances”.[25]
[25] Transcript 23 February 2023, p.295 line 44.
Dr C noted the wife’s account that she had never had any mental health problems (save she later conceded a past history of depression) and opined that she impressed as somewhat minimising in regards to her mood difficulties. Dr C found there was evidence of some dysfunction in regards to organisational matters and despite her denials, it was evident from his viewing of the various photos and/or videos taken by the husband and/or Ms U of the FMH, both in 2019 and late 2022, together with his psychiatric assessment of her, that the wife had a “[mental health disorder] of some significance”.[26]
[26] Psychiatric Assessment of Dr C dated 3 February 2023, p.22.
The wife’s account that all the problems and mess in the house were due to X was “bizarre and not sustainable” in Dr C’s view.[27] The wife’s account with regard to her frugal approach to managing the family’s finances by relying on charity was another aspect of the wife’s behaviour that Dr C considered was in keeping with what appeared to be a mental health disorder. Dr C assessed the wife may be more vulnerable than she let on or was prepared to admit.
[27] Psychiatric Assessment of Dr C dated 3 February 2023, p.23.
Dr C described this mental health disorder as an “insipient condition which is resistant to treatment, often largely because of a lack of insight of the people who suffer the disorder”.[28] He noted the wife’s comment “I never thought it was such a big deal” as one example of her lack of insight.[29]
[28] Psychiatric Assessment of Dr C dated 3 February 2023, p.24.
[29] Psychiatric Assessment of Dr C dated 3 February 2023, p.23.
Dr C had significant reservations as to the wife’s insight regarding not only the disordered behaviour, but also organisational matters: “her level of organisation is not high, and her level of insight in regard to that is limited” together with indications of some enmeshment of the children with her, in regard to their experience of the husband.[30]
[30] Transcript 23 February 2023, p.296 lines 37-38.
Dr C was left with some reservations about the wife, who at interview impressed as a woman of low, possibly depressed and anxious mood. It was concerning, in his view, that the wife “clearly believes in her own mind that despite what appears to be significant evidence of a disorder – that she doesn’t have one”.[31] She had “reduced affect”.[32] Whilst her dedication to the children was undoubted, in his opinion the wife required assessment by a treating psychiatrist and possible management with psychotropic medication.
Dr D, Forensic Psychologist
[31] Transcript 23 February 2023, p.293 lines 38-40.
[32] Transcript 23 February 2023, p.18 lines 1-8.
Family Report dated 18 March 2022
Dr D prepared a Family Report on 18 March 2022 having interviewed the children and both parents. At the time of the Family Report the then parenting arrangements were: the children residing primarily with the wife in the FMH; the husband residing with Ms KK and her two adolescent children in Suburb LL; Ms AA and Ms BB spending time with the husband in accordance with their wishes; X spending time with the husband each alternate weekend from Friday to Tuesday, and each Wednesday after school for dinner; Y spending time with the husband from Friday to Monday, and each Wednesday after school for dinner; and X and Y having scheduled telephone calls with the husband each Thursday evening.
At the time of writing her Family Report, Dr D observed the parties to have a strained co‑parenting dynamic. They had, prior to attending upon Dr D, attended upon Ms EE for therapeutic counselling. This ceased in early 2021. The husband stated Ms EE helped the parties to “put things in place” to assist them to co-parent more effectively but such practical assistance was thereafter frustrated by the wife, who did not adhere to the commitments made in the sessions.[33] The husband described feeling “hamstrung” and blocked by the wife in his efforts to provide assistance to the children in the manner proposed by Ms EE.[34] The husband was however hopeful of greater collaboration between the parties. The wife indicated the attendance upon Ms EE had been beneficial, stating the parties “needed to do more but couldn’t afford it”.[35] The wife stated the lack of co-operation and effective co-parenting between the parties was due to each parent operating in a silo.
[33] Family Report of Dr D dated 18 March 2022, paragraph 93.
[34] Family Report of Dr D dated 18 March 2022, paragraph 93.
[35] Family Report of Dr D dated 18 March 2022, paragraph 93.
The children
All children reported to Dr D they had been travelling better than they had in previous years, although Y by that time presented with ongoing mental health issues, which at times had impacted her happiness and wellbeing.
Dr D observed the children to collectively evidence a sibling bond, albeit the bond with X appeared to be negatively impacted at times in the context of his behaviour, with all three female children speaking about the challenging and violent behaviours that had been exhibited by him.
X
X was not formally interviewed by Dr D and declined to participate. Dr D supported this in the context of his history of challenging behaviours. Dr D observed X informally interacting with his siblings and each parent.
Dr D conceded it could be possible that at times X’s challenging behaviours were exacerbated in response to changes in the family dynamics post-separation and exposure to the adult conflict.
X evidenced a clear bond with each parent and there was no hesitancy in X’s interaction with each parent. He appeared to seek comfort from each of them when feeling overwhelmed or uncomfortable in an unfamiliar environment.
Dr D stated X’s intellectual disability and developmental delay was pronounced and his expressive language was notably behind that of his peers. X however demonstrated good receptive language, with his responses indicating he had understood the conversation. X was also observed to be quite strong in terms of physical development.
Y
Y presented to Dr D as somewhat nervous, becoming teary at times during the interview. Y informed Dr D she did not like talking about her feelings and was not interested in speaking with a psychologist or counsellor in future.
Dr D deposed to Y looking towards Ms AA and Ms BB for guidance as her older sisters.
Y spoke to Dr D of a strong interest and enjoyment in a sport. She explained she had recently started participating in competitions/events and needed to practice at least four times a week. Y appeared somewhat distressed about this, as spending time with the husband impeded on her capacity to do so. However, Y’s engagement in other activities, such as other sports on Friday evenings and on Saturday were facilitated by both parents.
Y expressed her disappointment in herself for her perceived poor performance at a recent event to Dr D. Dr D stated her narrative was suggestive of a child who sought to be a high achiever and was overly critical of herself. Dr D noted the parties needed to provide reassurance and validation to Y.
Dr D stated it was plausible that Y had been exposed to issues of an adult nature in the wife’s care post-separation that had contributed to her expressed views and discomfort in attending the spend time with the husband. Y tended to look to her older sisters when forming her views and experiences of the husband which complicated her relationship with the husband, given her sisters’ reported negative experiences and fractured relationship with him.
Evaluation and recommendations
An interim IVO was in place from mid-2019 to mid-2021 where the husband agreed without admission to the IVO. This order has since expired and there are currently no IVO’s in place.
The allegations of violence relied upon by the wife are historic. There have been no further allegations of family violence made by the wife against the husband.
The husband acknowledged being under considerable psychological stress in the lead up to the separation due to the wife failing to address the state of the home and its lack of cleanliness. The husband admitted to there being arguments between the parties during which he had said things in front of the children that he now regrets, although denied this being a pattern of abuse over time.
The husband denied most of the allegations of family violence as made by the wife prior to mid-2019. He did concede that on a very rare occasion he has smacked his children for misbehaving.[89] The husband also acknowledged calling Ms AA “a fucking lazy cow” for doing nothing to help around the house.[90] The husband said on one occasion he had asked Ms BB to help him with repairing the dishwasher as his hand was too big to fit through the hole. He may have asked Ms BB to see if she could reach her hand in further, but it did not result in him pushing her head down inside the dishwasher as alleged by the wife.[91] The husband denied having physically hurting X. The husband recalled an incident whereby he was attempting to physically restrain X (a practice both parents have had to resort to at times due to X’s challenging behaviours) and X lost his footing and fell over.[92]
[89] Husband’s trial affidavit filed 20 October 2022, paragraph 26.
[90] Family Report of Dr B dated 17 January 2020, p.20.
[91] Family Report of Dr D dated 18 March 2022, paragraph 65.
[92] Family Report of Dr D dated 18 March 2022, paragraph 66.
I find that family violence has not been a feature of the parties and/or parties and children relationships over the recent years.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to further litigation in relation to the child
The ICL submitted Y would benefit from the therapeutic assistance of a counsellor to facilitate her understanding of her identity within the family unit and in both parents’ households.[93]
[93] ICL’s Outline of Case filed 21 October 2022, p.3.
When questioned by counsel for the husband as to whether she agreed settling the children into a routine without further change and litigation is in their best interests, the wife agreed.[94]
[94] Transcript 23 February 2023, p.312 lines 35-36.
It is clearly preferable, in my view, to make orders that would be least likely to lead to further litigation in relation to the children.
Conclusion
The wife’s rental property has six bedrooms and a study and is situated on a large property. The children each have their own bedrooms. The property is in an area accessible to the children’s respective schools and where the animals are agisted.[95] The wife had made arrangements for the animals to be held on a local property and to rehome their dog. The wife deposed her lease is for six months with an option to extend.[96] At trial, the home was in a very tidy state. The wife had realised, to a very small extent, her then predicament. I do not take this to be a resolution of the wife’s difficulties however. But it might be the commencement of some progression toward establishing and maintaining a hygienic household. And it may not.
[95] Wife’s trial affidavit filed 17 October 2022, paragraphs 66-68.
[96] Wife’s trial affidavit filed 14 September 2022, paragraph 32.
It is submitted on behalf of the husband and in effect, the ICL, that Dr D’s evidence supports a change of residence as there is no reasonable prospect that the wife will accept treatment or support services, and the risks to the children if they are to remain living with the wife who has a mental health disorder are as suggested in general terms by Dr D in her Addendum Report. I accept that submission. Those risks are also very clearly set out in Dr C’s evidence.
The husband and ICL’s proposal for a change in primary care of the children from the wife to the husband do enable the children to have a meaningful relationship with both of their parents, whilst protecting the children from harm by lessening their exposure to the wife’s mental health and medical issues. These issues arise from the wife’s overuse of prescription medication, her depression and mental health disorder coupled with her lack of insight. By the husband having the care of the children on more school days than the wife, the issue of the children not attending school or being late for school will be lessened.
In my view, the children should spend however a greater time with the wife than that proposed by the husband and the ICL, namely six nights a fortnight during school term periods. The wife has been their primary carer and Y in particular will find a movement of such degree already difficult to accommodate. A situation, where the husband becomes, marginally, the primary care giver is one which in my view is sufficiently ameliorating of the risks posed by the wife and will be less likely to lead to further litigation. It is an arrangement that promotes the children’s best interests and is capable of being supported by the parents and their children for the reasons set out above.
PROPERTY
The parties commenced cohabitation in 1997, married in 2000 and separated in 2019. Their cohabitation period was approximately 22 years.
Legal principles
Section 79(1) of the Act provides that the Court may make such orders as it considers appropriate altering the interests of the parties in property. Section 79(2) of the Act provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is so satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made.
The High Court of Australia (the “High Court”) in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) revisited the process for trial judges in altering property interests of parties pursuant to s 79 of the Act for married parties. The High Court emphasised the requirement for the Court to establish firstly, that it be just and equitable in the particular circumstances of the case to make any alteration of property interests. In this process, the question presented by s 79(2) of the Act, namely, “whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,”[97] must not be merged with, or supplanted by the inquiries under s 79(4) of the Act.[98] In determining whether it is just and equitable to make an order, the matters which can be taken into account do “not admit of exhaustive definition.”[99] However, there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage.”[100]
[97] Stanford v Stanford (2012) 247 CLR 108 at [37] (“Stanford”).
[98] Stanford at [51].
[99] Stanford at [36] referring to Mallet v Mallet (1984) 156 CLR 605, 608 per Gibbs CJ.
[100] Stanford at [41].
I am satisfied that in all of the circumstances of this case it is just and equitable to make orders adjusting the parties’ property interests. Each of the parties seek that I make such adjustment and can reach no agreement as to how that should occur. There is no common use of the parties’ property post separation. The implicit and express assumptions the parties may have had as to the arrangements made by them concerning their property interests were brought to an end at separation and thereafter.
Whilst I have considered as a precondition to making an order for property settlement whether it is just and equitable in all the circumstances of the particular case to make such an order, the Full Court of the then Family Court of Australia, now Federal Circuit and Family Court of Australia (Division 1) in Bevan & Bevan (2013) FLC 93-545 at [86] made clear that the just and equitable consideration is one that “permeat[es] the entire process”.
The asset pool
The table below outlines the legal and equitable interests of the parties as agreed by them.
Notionally added back into the pool of assets to be divided between the parties is the sum of $23,000 being a sum forming one part of the monies paid to the husband pursuant to Order 4 of the orders made 15 September 2022, for the purposes of preparing the FMH for sale. The sum of $23,000 was not expended on the FMH and retained by the husband for his personal use.
Assets
Value
E Street, Suburb F (FMH)
(Less Mortgage to Westpac Home Loan)
$2,500,000
Less $823,078
Equity $1,676,922
Add back funds retained by the husband and not used for the repairs to FMH
$23,000
Assets subtotal
$1,699,922
Liabilities
Value
Real Estate Agent Commission on Sale – VV Real Estate
$37,500
Real Estate Advertising owed to VV Real Estate
$13,000
Outstanding Rates – S Council
$21,601
Outstanding Water Bill – T Service
$5,079
Project Management fees owed to Ms U
$6,600
Westpac MasterCard #...56
$13,234
Westpac MasterCard #...58
$3,274
CBA MasterCard
$8,722
Tax Liabilities
E$392,000
Personal Tax Liability
$30,000
Accounting fees owed to G Accountants
E$15,000
Liabilities
$546,010
Total Net Assets
$1,153,912
Superannuation
Ownership
Value
Superannuation Fund 1
Husband
$583,000 (as at 14 February 2023)
Superannuation Fund 2
Husband
$352,000 (as at 14 February 2023)
Superannuation Fund 3
Husband
$41,000 (as at 14 February 2023)
Superannuation Fund 1
Wife
$100,620 (as at 20 February 2023)
Total Superannuation
$1,076,620
The assets and liabilities to be retained by the husband in specie are as follows:
(1)His bank accounts of approximately $3,000. These funds are the residue of part property settlements referred to in item 2 below.
(2)Funds received by him by way of part property settlement. The husband says $175,000. The wife includes monies paid by part property settlements and all other funds distributed by agreement post separation and says $399,173.
(3)Motor Vehicle 1. The husband estimates a value of $18,000.
(4)Motor Vehicle 4. Valuation was prepared on 13 August 2022 by WW Insurance - $53,000.
(5)Proceeds of sale of Motor Vehicle 5. Bought by the husband in 1988 and sold by him in early 2021 for $23,000.
(6)Tools, trailer and gardening equipment purchased by him for renovations to Suburb F and retained by him. The husband spent $17,000 on these items. The current value is not known.
(7)Collectibles. The husband estimates $7,000 and wife estimates $40,000 but these have not been valued.
(8)Loan to husband from Mr XX – legal fees $60,000.
(9)Loan to husband from Mr YY – legal fees $35,000.
(10)Loan to husband from ZZ Finance – legal fees $85,000.
The assets and liabilities to be retained by the wife in specie are as follows:
(1)Her bank accounts of approximately $70,000 being remaining funds from part property settlements. These funds are the residue of part property settlements referred to in item 2 below.
(2)Funds received by her by way of part property settlement. The husband says $190,000. The wife includes monies paid by part property settlements and all other funds distributed by agreement post separation and says $358,081.
(3)Motor Vehicle 3 – in the husband’s name but to be transferred to the wife. The husband estimates $20,000, the wife estimates $500 but this has not been valued.
(4)2 trailers, animals and related equipment. The husband estimates $40,000, the wife estimates $20,000 but these have not been valued.
(5)Recreational vehicle. The husband estimates $16,000, the wife estimates $5,000 but this has not been valued.
(6)Tools and gardening equipment retained by the wife from the Suburb F property. The husband estimates $40,000, the wife estimates $3,000 but these have not been valued.
The parties agree as to the retention of these assets and liabilities by each of them respectively, and consider that such retention represents an approximately or roughly equal division between them, in respect of which they are content.
Contributions
An assessment of contributions is “holistic” in nature.[101] It is nevertheless of assistance to consider that evidence of contributions in the manner as set out below to provide some structure to the task.
[101] Dickons & Dickons (2012) 50 Fam LR 244.
Commencement of the relationship
Both the husband and wife were gainfully employed at the commencement of the relationship. The husband was employed as a professional for AB Company and the wife was employed as a professional for AB Company.
At the commencement of the relationship in 1997, the husband owned a property with equity of $90,000. The husband also owned a motor vehicle and superannuation, neither of which were quantified by the husband. The wife had no savings and a car which was subject to loan.
The husband’s assets were used as a starting point for the purchase of further assets including the FMH in 2014.[102]
[102] Husband’s written closing submissions dated 28 March 2023, paragraph 39.
The wife submitted in the context of a 22 year marriage this disparity in initial contributions was insignificant.[103]
[103] Wife’s written closing submissions dated 8 March 2023, paragraph 16.
During cohabitation
The husband worked throughout the entirety of the cohabitation of the parties and was the primary income earner. The income he generated was applied by both he and the wife to meet joint expenses incurred by the family unit. The wife worked prior to the birth of the parties’ adult children and ceased work entirely in 2005 due to her injury. The wife was in the role of homemaker and parent, attending to household tasks and parenting. The husband provided assistance to the wife in relation to the care of the children and household duties such as maintaining the landscaping and gardening of the FMH, but otherwise worked full time.
It is common ground the husband was the sole financial provider from 2005 onwards.
Prior to separation, the parties owned the FMH, together with investment properties as purchased by them being the Suburb J property, the Suburb R property, the Region P property and the Suburb HH property (together “the investment properties”).
Post cohabitation
Following, separation the children and the parties’ adult children lived with the wife in the FMH (until the FMH was sold and the wife relocated to rental premises elsewhere with the children and adult children). The wife was reliant on the husband for monies to meet the children’s living and the family’s other expenses. From separation until September 2019, the husband continued (but not thereafter) to cause his income to be paid into a joint account ending in #...84 which the wife had access to, a longstanding arrangement that had been in place during the relationship. The wife did not receive child support from the husband at that time and so of necessity continued to use the money held in the joint funds. In early 2020, the husband shut down this account.[104] Before that time the husband had commenced to reside in rental accommodation.
[104] Wife’s trial affidavit filed 17 February 2023, paragraph 23.
Each of the husband and wife received a part property settlement following interim orders being made on 1 October 2019. The wife received the sum of $90,000 and the husband received the sum of $50,000. Further part property settlements followed as detailed earlier in these reasons.
Funds from the joint account number ending #...52 were distributed as follows:[105]
[105] Wife’s trial affidavit filed 17 February 2023, paragraph 45.
(1)On 29 September 2022:
(a)$156,000 was withdrawn to enable the husband to prepare the FMH for sale;
(b)$50,000 was withdrawn as previously owed to the wife and agreed at mediation;
(c)$3,815 was withdrawn to purchase food for the children’s animals;
(d)$250 was withdrawn for plumbing works at the FMH; and
(e)$4,215 was withdrawn for a home loan repayment for the FMH.
(2)On 11 November 2022:
(a)$50,000 was withdrawn to the wife;
(b)$55,000 was withdrawn to the husband;
(c)$35,000 was withdrawn to the wife; and
(d)$20,000 was withdrawn the wife.
The proceeds of sale from the sale of the Suburb M property and Suburb J property were applied to discharge the two Westpac loans secured over those properties and thereafter the net proceeds of sale were distributed to each of the parties and such distribution is regarded by each party as payment of a part property settlement to each. The sale of the other investment properties was dealt with by the parties together with agreement as to necessary expenditure.
Conclusion as to contributions
Whilst the husband provided a greater initial contribution, over the 22 years of their cohabitation and post separation, I conclude that the parties myriad of contributions, which included the wife’s greater contribution to the care and support of the children post separation, result in an overall assessment of the parties contributions to be equal, as in any event conceded by the parties.
Section 75(2) Legal Principles
It has long been recognised that in most cases the most valuable “asset” which a party can take out of the marriage is a substantial, reliable, income-earning capacity.[106]
[106] Best & Best (1993) FLC 92-418.
In Clauson & Clauson (1995) FLC 92-595 (“Clauson”), the Full Court held that in the circumstances of that case, where the wife had the care of four young children and there was an enormous disparity in income and earning capacity of the parties, an allowance of 15% fell “well below the legitimate exercise of the wide discretion” of the trial judge. The Full Court commented at [710] that:
There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.
In Pandelis & Pandelis (2018) Fam CAFC 66, the Full Court cited and approved Clauson and stated that “in many of these cases reference only to percentages can be misleading; the reality is to be found in the actual figures”.
Relevant Section 75(2) Matters
The age and state of health of the parties appears in the judgment above, as does their income, property, financial resources and capacity for employment.
The wife sought a 25 per cent loading in her favour for s 75(2) matters.[107] The wife sought the two elder children’s circumstances be considered by the Court due to their medical difficulties, mental health difficulties and the fact they will be in the wife’s care for many future years.[108] The husband sought no adjustment in respect of this consideration.
[107] Transcript 20 February 2023, p.6 lines 26-27.
[108] Wife’s trial affidavit filed 17 February 2023, paragraph 7.
It is unlikely the wife will ever return to paid employment.[109] The wife deposes that she will never be able to obtain employment due to her injury. The wife intends to receive a Disability Support Payment once the proceedings finalise and given her health issues, it is likely she will obtain such Centrelink payments. The wife intends to purchase a home for herself and the children and will need to meet some financial obligations for X and Y.[110]
[109] Wife’s written closing submissions dated 8 March 2023, paragraph 17.
[110] Wife’s trial affidavit filed 17 February 2023, paragraph 100.
The husband is employed and derives an income of approximately $180,000 gross per annum. During cross-examination, the husband conceded he had at one point in recent years earnt $300,000 gross per annum.[111] He provided further evidence however that he did not anticipate getting a pay rise, as he was a contractor and that his income would likely remain in its current vicinity. Nevertheless, I consider the husband to have only a significant income but also a substantial earning capacity relative to the wife.
[111] Wife’s written closing submissions dated 8 March 2023, paragraph 18.
The parties total combined superannuation amounts to $1,076,620 which the parties agree to split equally. Thus, each of them will have superannuation entitlements of $538,310.
The husband and wife have not filed taxation returns since 2009. The wife has not assisted in that process by her abject failure to comply with Court orders, which ultimately extended to a drawn out process for the return of the husband’s belongings, including chattels, to him, and the husband provided no plausible reason as to why his personal taxation returns in earlier cohabitation years had not been completed by him.
The husband will have the greater financial obligation to provide for the parties’ children for some years in light of the final parenting orders the Court shall make and the parties income disparity.
The parties’ adult children who cohabit with the wife have, on each parties evidence, a history of anxiety and depression. The husband deposes to Ms AA having a casual job and the wife deposes to Ms AA having made an application for a disability support pension. Both parties depose to Ms BB currently undertaking a vocational program in beauty, hoping to work in the beauty industry. The wife continues to contribute to their support, albeit voluntarily.
The husband and Ms KK share household expenses of rent, food, bills and similar, both parties contribute what they can, depending on their means.[112] Ms KK has an earning capacity but I am mindful that it may be circumscribed somewhat by the need to assist the husband in the care of the children. Ms KK deposed to owning a holiday house in Town AC, Victoria which she lets out for holiday rentals. Ms KK estimated the value of the property to be around $800,000 to $850,000, with a mortgage of $700,000 secured against the property. Ms KK stated she is making mortgage repayments of $1,870 a fortnight.[113] Ms KK has modest superannuation and a motor vehicle, but no other assets of significance.[114]
[112] Affidavit of Ms KK filed 16 February 2023, paragraph 18.
[113] Transcript 21 February 2023, p.105 lines 1-2.
[114] Affidavit of Ms KK filed 16 February 2023, paragraph 17.
I find the wife’s conduct did lead, to some reduction of the parties’ asset pool. The wife’s mental health disorder made the task of preparing the FMH for sale difficult and costly, and her delay in cooperating with the sale process and vacating the FMH caused financial hardship for the husband.
The husband deposed that had the FMH been ready for sale as originally ordered by the Court in June 2021 or August 2022, the property would have sold for considerably more than what it has eventually sold for in early 2023. An estimate of the property value in August 2022 was $3 million. By December 2022 it had dropped to $2.6 million. The FMH sold for $2.5 million after the agent engaged in considerable negotiations with the purchasers and brought them up from $2.4 million.[115]
[115] Husband’s trial affidavit filed 17 February 2023, paragraph 22.
The parties will jointly have a significant tax bill that needs to be paid when the parties complete their tax returns. The husband’s estimate is that it will be close to $400,000.[116]
[116] Wife’s trial affidavit filed 17 February 2023, paragraphs 48-49.
The husband incurred legal costs of $252,310.18 and disbursements of $81,455 as at 19 February 2023. This is a total of $333,765. The husband’s solicitors provided for estimated future legal costs to be $52,750.
The wife’s costs in these proceedings are significantly less than those of the husband. The wife’s costs notice dated 17 February 2023 stated she had incurred costs of $104,696 of which $65,097 had been paid by her. The wife’s further costs were estimated to be $32,250 to the end of the trial and a total of $136,946.
I accept that some of this disparity in legal costs was as a consequence of the wife’s lack of compliance with Court orders. This additional cost to the husband I take into account under s 75(2)(o) of the Act.
Section 75(2) Conclusion
There should be a 10% adjustment in favour of the wife.
Conclusion
An assessment of equal contribution and a 10% adjustment in favour of the wife by reference to my consideration of the s 75(2) matters provides for a 60% division of the net proceeds of the FMH (after the initial deduction of $23,000 as payable to the wife) to the wife. This is an amount of $692,347.
A 40% division is an amount of $461,565. The difference between these percentage adjustments is $230,782 in favour of the wife.
I am satisfied in that all the circumstances, it is just and equitable to make the order as to that percentage and monetary adjustment as between the parties in conjunction with their agreed division of equality in respect of their superannuation entitlements; those debts as agreed to be paid by them jointly; and the retention of assets and liability in specie by them.
I certify that the preceding two hundred and seventy-three (273) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 7 July 2023
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